March 28, 2024 / by 

 

The Carter Page IG Report Debunks a Key [Impeachment-Related] Conspiracy about Paul Manafort

I’m still working on my multi-post deep dive into the substance of the IG Report on the Carter Page FISA.

But for now, it’s worth pointing out a detail from it that debunks a key conspiracy that Rudy Giuliani is chasing as he tries to hasten his client’s impeachment.

The Report describes that the investigation into Paul Manafort that resulted in conviction in EDVA and a guilty plea in DC started in January 2016, before he joined the Trump campaign.

In addition to Ohr’s interactions with the FBI and Steele in connection with the Crossfire Hurricane investigation, Ohr also participated in discussions about a separate money laundering investigation of Paul Manafort that was then being led by prosecutors from the Money Laundering and Asset Recovery Section (MLARS), which is located in the Criminal Division at the Department’s headquarters. That criminal investigation was opened by the FBI’s Criminal Investigation Division in January 2016, approximately 2 months before Manafort joined the Trump campaign as an advisor, and concerned allegations that Manafort had engaged in money laundering and tax evasion while acting as a political consultant to members of the Ukrainian government and Ukrainian politicians.

As expressed by propagandists like John Solomon, the investigation into Manafort’s corruption was actually “resurrected” later that year, in response to the publication of the Black Ledger (which he falsely said was a suspected fake).

The second document, known as the “black cash ledger,” remarkably has escaped the same scrutiny, even though its emergence in Ukraine in the summer of 2016 forced Paul Manafort to resign as Trump’s campaign chairman and eventually face U.S. indictment.

In search warrant affidavits, the FBI portrayed the ledger as one reason it resurrected a criminal case against Manafort that was dropped in 2014 and needed search warrants in 2017 for bank records to prove he worked for the Russian-backed Party of Regions in Ukraine.

Based on this false claim, Solomon and Rudy have claimed that Serhiy Leshchenko’s publication of the ledger (but not the entries pertaining to Manafort) was part of a Ukrainian plot to defeat Trump by falsely (they suggest) portraying Manafort as corrupt.

But the Black Ledger is not what “resurrected” the investigation into Manafort. It had started long before that, even before Manafort knew (two months before it was public) that he was included in the Black Ledger. Indeed, Manafort was under investigation when Trump hired him.

Note, too, that contrary to Trump’s wails, there would be no reason to give him a defensive briefing about Manafort, as this was not a counterintelligence investigation. Indeed, the Manafort investigation remained focused on his corruption well into 2017. If you hire a spy, you might hope that the FBI would warn you. But if you hire an epically corrupt influence peddler, you own the consequences of that.

OTHER POSTS ON THE DOJ IG REPORT

Overview and ancillary posts

DOJ IG Report on Carter Page and Related Issues: Mega Summary Post

The DOJ IG Report on Carter Page: Policy Considerations

Timeline of Key Events in DOJ IG Carter Page Report

Crossfire Hurricane Glossary (by bmaz)

Facts appearing in the Carter Page FISA applications

Nunes Memo v Schiff Memo: Neither Were Entirely Right

Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

Report shortcomings

The Inspector General Report on Carter Page Fails to Meet the Standard It Applies to the FBI

“Fact Witness:” How Rod Rosenstein Got DOJ IG To Land a Plane on Bruce Ohr

Eleven Days after Releasing Their Report, DOJ IG Clarified What Crimes FBI Investigated

Factual revelations in the report

Deza: Oleg Deripaska’s Double Game

The Damning Revelations about George Papadopoulos in a DOJ IG Report Claiming Exculpatory Evidence

A Biased FBI Agent Was Running an Informant on an Oppo-Research Predicated Investigation–into Hillary–in 2016

The Carter Page IG Report Debunks a Key [Impeachment-Related] Conspiracy about Paul Manafort

The Flynn Predication

Sam Clovis Responded to a Question about Russia Interfering in the Election by Raising Voter ID


Amy Berman Jackson Disputes Claims of “Exculpatory” Information on Russia and Ukraine

For all its import showing the problems with Carter Page’s FISA application, I’ll eventually show the DOJ IG Report  commits some of the same errors of inclusion and exclusion of important information that it accuses FBI of. Most importantly, it treats as exculpatory comments that George Papadopoulos made to Stephan Halper and another informant in fall 2016 when the FBI agents involved rightly (the record now confirms) suspected Papadopoulos’ answer was a cover story. Notably, Rosemary Collyer did not include the Papadopoulos comments in her letter to the government yesterday, suggesting she doesn’t think exclusion of those comments to be noteworthy.

Given Michael Horowitz’s focus on FBI’s withholding of exculpatory information (which they absolutely did, on a number of occasions), I find the focus of Amy Berman Jackson’s comments at Rick Gates’ sentencing hearing yesterday notable. (Thanks to CNN for culling these comments from the transcript.)

Some of the comments — including some focusing on Ukraine — seemed targeted at Republicans debating impeachment. For example, she emphasized that Gates’ information was not hearsay, and it implicated individuals associated with Ukraine and Russia.

Mr. Gates provided information — not hearsay, but information — based on his personal knowledge, meetings he attended, conversations in which he was a participant and information that was verified with contemporaneous records of numerous, undeniable contacts and communications between individuals associated with the presidential campaign, primarily but not only Manafort, and individuals associated with Russia and Ukraine.

ABJ likely recognizes, as I have emphasized, that Paul Manafort’s August 2, 2016 meeting with Konstantin Kilimnik and its aftermath — including his booking $2.4 million from pro-Russian Ukrainian oligarchs eight days later — represents a clearcut case of Ukraine interfering in the 2016 election.

She also takes a shot at those claiming there was no basis for the investigation into Russia, and suggests that obstruction successfully prevented prosecutors from charging the underlying coordination.

Gates’ debriefings, his multiple incriminatory bits of evidence on matters of grave and international importance are a reminder that there was an ample basis for the decision makers at the highest level of the United States Department of Justice — the United States Department of Justice of this administration — to authorize and pursue a law enforcement investigation into whether there was any coordination between the campaign and the known foreign interference in the election, as well as into whether there had been any attempt to obstruct that investigation, and to leave no stone unturned, no matter what the prosecutors determined they had evidence to prove at the end of that investigation.

And she emphasizes that pursuing this investigation was critical for election security.

Gates’ information alone warranted, indeed demanded, further investigation from the standpoint of our national security, the integrity of our elections and the enforcement of our criminal laws.

But there’s a line in here that seems directed at the discussion surrounding the IG Report.

One cannot possibly maintain that this was all exculpatory information. It included firsthand information about confidential campaign polling data being transmitted at the direction of the head of the campaign to one of those individuals to be shared with Russian and Ukrainian oligarchs.

The investigation into whether Trump’s campaign coordinated with Russia in its election interference started 3 days before Roger Stone spoke to Trump about how to optimize the WikiLeaks releases. It started 5 days before Trump’s campaign manager met with Konstantin Kilimnik to explain how he planned to win the investigation, discussed carving up Ukraine to Russia’s liking (an effort Manafort pursued for over a year afterwards), and how to get paid by his Ukrainian and Russian paymasters. It started 11 days before Manafort booked $2.4 million in revenues — to be received in November — from his Ukrainian paymasters.

Again, ABJ has seen more of the underlying evidence from this investigation than anyone. And she sure seems to think that Bill Barr, Donald Trump, and Michael Horowitz are dismissing the seriousness of this investigation.


Judge Emmet Sullivan to Mike Flynn: You Sir, Are No Ted Stevens

Judge Emmet Sullivan just denied all of Mike Flynn’s efforts to blow up his plea deal. While it addresses his long list of demands one by one, even before he gets there, it’s clear he’s pretty fed up with this whole effort. Along the way, Sullivan accuses Flynn’s lawyer, Sidney Powell, of not ethically citing one of her sources.

The Court notes that Mr. Flynn’s brief in support of his first Brady motion lifted verbatim portions from a source without attribution. Compare Def.’s Br., ECF No. 109 at 11-12, 15-16, 15 n.21, with Brief of the New York Council of Defense Lawyers et al. as Amici Curiae Supporting Petitioner, Brown v. United States, 566 U.S. 970 (2012) (No. 11-783), 2012 WL 242906 at *5-6, *8, *12-13, *12 n.6. In a footnote, Mr. Flynn’s brief merely provides a hyperlink to the “excellent briefing by Amicus [sic] in support of the Petition for Writ of Certiorari in Brown v. United States.” Def.’s Br., ECF No. 109 at 16 n.22.

The District of Columbia Rules of Professional Conduct apply to the proceedings in this Court. See LCrR 57.26. Rule 8.4(c) provides that “[i]t is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” D.C. Rules of Prof’l Conduct R. 8.4(c); see In re Ayeni, 822 A.2d 420, 421 (D.C. 2003) (per curiam) (lawyer’s plagiarized brief violated Rule 8.4(c)). “[C]itation to authority is absolutely required when language is borrowed.”

He also reminded Flynn that before he pled guilty the second time, he (Sullivan) engaged in a sworn colloquy to prevent precisely the kind of back-tracking on his plea Flynn has been engaged in since June.

On December 18, 2018, this Court accepted Mr. Flynn’s guilty plea a second time. Sentencing Hr’g Tr., ECF No. 103 at 5, 16. During that hearing, the Court extended the plea colloquy in view of Mr. Flynn’s statements in his sentencing memorandum, which raised questions as to whether Mr. Flynn sought to challenge the conditions of the FBI interview. See generally Def.’s Mem. in Aid of Sentencing, ECF No. 50 at 6-18. In response to the Court’s question, defense counsel did not express “any concerns that potential Brady material or other relevant material was not provided to [Mr. Flynn].” Sentencing Hr’g Tr., ECF No. 103 at 10. Defense counsel affirmed to this Court that Mr. Flynn was not entitled to any additional information. Id. at 10-11. Under oath, Mr. Flynn confirmed that his rights were not violated as a result of the circumstances of his January 24, 2017 FBI interview and the allegations of misconduct against FBI officials. Id. at 11-12. And Mr. Flynn declined the Court’s invitation for the appointment of independent counsel to advise him. Id. at 9-10.

But perhaps the worst sign of Sullivan’s frustration with this ploy comes way at the end of his order, where he says explicitly that Flynn’s case does not resemble that of Ted Stevens, even though Powell has tried to make that claim over and over.

This case is not United States v. Theodore F. Stevens, Criminal Action No. 08–231(EGS), the case that Mr. Flynn relies on throughout his briefing.

He even hints that if he had found Brady violations, all that would get Flynn would be a trial.

Even if Mr. Flynn established a Brady violation in this case, dismissal would be unwarranted because “[t]he remedy for a Brady violation is retrial, not dismissal.” United States v. Borda, 941 F. Supp. 2d 16, 19 n.1 (D.D.C. 2013) (citing Pettiford, 627 F.3d at 1228). “[D]ismissal is appropriate only as a last resort, where no other remedy would cure prejudice against a defendant.” Pasha, 797 F.3d at 1139.

Sullivan scheduled sentencing for January 28, just over a month away.

Flynn had better hope his continued efforts to piss off Sullivan cool off before then.


Trump “Cares” about Corruption in Ukraine because It Ensures Paul Manafort Will Keep His Secrets

On August 2, 2016, Donald Trump’s campaign manager took a break from his campaign work for a secret meeting with his former employee, Konstantin Kilimnik. Kilimnik first pitched the meeting on 10:51AM on July 29 after meeting in person in Moscow with Viktor Yanukovych, explaining that, “It has to do about the future of [Yanukovych’s] country, and is quite interesting.” Paul Manafort accepted the meeting that same day, saying Tuesday was the best day for it. After Kilimnik returned to Ukraine on July 31, he told Manafort he needed two hours for the meeting and would arrive at JFK at 7:30 PM on August 2 for the meeting.

At the meeting, Manafort and Kilimnik discussed three things. First, they discussed a plan to make “peace” in Ukraine by creating an autonomous region in Donbas and getting Yanukovych “elected” to head it. Manafort later told Mueller’s team that he cut the meeting short before Kilimnik asked him to get Trump to come out for the peace plan, though Mueller’s team argued and Amy Berman Jackson agreed that Manafort was lying about what happened at the meeting.

After Rick Gates showed up (he came late), Manafort laid out for Kilimnik how the campaign planned to win Michigan, Wisconsin, Pennsylvania, and Minnesota.

Finally, Kilimnik told Manafort how he could get back on the gravy train of Oleg Deripaska and the Party of Regions. Specifically, Kilimnik explained what Manafort would have to do to get Ukrainian oligarchs Rinat Akhmetov and Serhiy Lyovochkin to pay him money that Manafort claimed they owed him from past work. Eight days later, on August 10, Manafort — who was badly underwater and working for Trump for “free” — would tell his accountant to book $2.4M in income from those oligarchs, to be paid in November.

This recognition of payment from Yanukovych’s allies just a week after meeting to talk about a way to help Yanukovych do Russia’s bidding is the only known instance of Ukraine interfering with people working directly for one of the candidates running for President. It is the only known instance of Ukrainian interference in 2016.

In early January, Manafort would meet with a senior Deripaska associate in a meeting set up by another Deripaska associate sanctioned along with a bunch of GRU officers to “recreat[e] old friendship” between Deripaska and Manafort.

Shortly thereafter (possibly the day he returned, on January 12), Manafort reportedly told Reince Priebus to undercut claims that Trump had close ties to Russia by debunking the Steele dossier, a strategy that — because the dossier turned out to be largely shit and possible disinformation — turned out to be wildly successful. As the DOJ IG Report describes in new detail, Christopher Steele had been working for Deripaska in an effort to help the oligarch settle his score with Manafort during the period he was working on the dossier.

From that point forward, Manafort would continue to pursue a “peace” plan in Ukraine that would give Russia what it wanted up until shortly before he was jailed in June 2018.

These are the events that about which Paul Manafort lied to prevent Mueller from fully understanding. To give Manafort an incentive to lie, John Dowd started telling him he would be “taken care of” in early 2018. Then, around the time he faced jail, Trump started making those pardon offers more explicit.

On June 15, 2018, the day the judge presiding over Manafort’s D.C. case was considering whether to revoke his bail, the President said that he “felt badly” for Manafort and stated, “I think a lot of it is very unfair.” And when asked about a pardon for Manafort, the President said, “I do want to see people treated fairly. That’s what it’s all about.” Later that day, after Manafort’s bail was revoked, t.he President called it a ” tough sentence” that was “Very unfair!” Two days later, the President’s personal counsel stated that individuals involved in the Special Counsel’s investigation could receive a pardon ” if in fact the [P]resident and his advisors .. . come to the conclusion that you have been treated unfairly”-using language that paralleled how the President had already described the treatment of Manafort.

These details — about what really happened in that meeting on August 2, 2016 and what Manafort did afterwards — are some of the things that Trump successfully obstructed the Mueller investigation in an effort to cover up.

And around the time Mueller publicly announced that Manafort had breached his plea deal by lying about all these things, Rudy Giuliani launched the campaign that would ultimately lead to getting the anti-corruption Ambassador in Ukraine, Marie Yovanovitch, fired, then would subsequently lead Trump to demand (in the same call while attacking Mueller) that the newly elected anti-corruption President of Ukraine, Volodymyr Zelensky, gin up investigations into his opponents Hillary Clinton and Joe Biden. Rudy conducted that campaign, significantly, while consulting Manafort in prison, and the effort is, at least in part, an effort to give Trump an excuse to pardon Manafort so Manafort will continue to remain silent about what really happened.

The Republican Party spent the entire day yesterday claiming that Donald Trump demanded those investigations out of concern for corruption in Ukraine. The Republican Party claimed, with a straight face, that the man who obstructed an investigation into what his own campaign manager did to get the pro-corruption pro-Russian party in Ukraine to pay him $2.4 million while he worked for Trump for “free,” opposed corruption in Ukraine.

This is the story the Democrats need to lay out over the next several weeks. The Republicans don’t much care that their arguments are transparently ridiculous. They care about defending a process that, at least in part, is an effort to make sure Paul Manafort never tells the truth about what happened in 2016.


While Republicans Continue to Claim Collusion Didn’t Happen, George Papadopoulos Labeled Roger Stone’s Actions as Treason

As part of its claim that the FBI withheld exculpatory information in Carter Page’s FISA application, the DOJ IG Report described George Papadopoulos’ interactions with Stefan Halper in mid-September 2016. When Halper twice asked Papadopoulos, “whether help ‘from a third party like Wikileaks for example or some other third party like the Russians, could be incredibly helpful’ in securing a campaign victory,” Papadopoulos categorically denied the campaign would reach out to WikiLeaks.

Well as a campaign, of course, we don’t advocate for this type of activity because at the end of the day it’s, ah, illegal. First and foremost it compromises the US national security and third it sets a very bad precedence [sic] …. So the campaign does not advocate for this, does not support what is happening. The indirect consequences are out of our hands…. [F]or example, our campaign is not. .. engag[ing] or reaching out to wiki leaks or to the whoever it is to tell them please work with us, collaborate because we don’t, no one does that…. Unless there’s something going on that I don’t know which I don’t because I don’t think anybody would risk their, their life, ah, potentially going to prison over doing something like that. Um … because at the end of the day, you know, it’s an illegal, it’s an illegal activity. Espionage is, ah, treason. This is a form of treason …. I mean that’s why, you know, it became a very big issue when Mr. Trump said, “Russia if you’re listening …. ” Do you remember? … And you know we had to retract it because, of course, he didn’t mean for them to actively engage in espionage but the media then took and ran with it.

When asked a second time, Papadopoulos called that “collusion.”

No one’s looking to … obviously get into trouble like that and, you know, as far as I understand that’s, no one’s collaborating, there’s been no collusion and it’s going to remain that way. [my emphasis]

When Papadopoulos has described this previously, he claimed he also denied having anything to do with Russia. If he did, it would be a lie. The very dates he was in London meeting with Halper, Papadopoulos had intended to conduct a secret meeting with Russia, something he failed to fully explain to Mueller. Even two weeks later, Papadopoulos was sharing an anti-sanction column in the Russian site Interfax with Joseph Mifsud.

It’s unclear whether Papadopoulos really believed that the campaign was not and would not coordinate with WikiLeaks. The most likely person he would have told that Russia planned to drop emails on Hillary back in April 2016 would be Stephen Miller, whom he emailed the day after learning of the emails and said, “Have some interesting messages coming in from Moscow about a trip when the time is right.” According to Rick Gates’ testimony at Roger Stone’s trial, Miller was one of several people with whom he brainstormed months later on how to optimize the WikiLeaks releases.

Q. Without saying what they said, who was involved in those brainstorming sessions about what to do if information was leaked?

A. Sure. It was Mr. Manafort; myself; Mr. Jason Miller, who was our director of communications; and Mr. Stephen Miller, who was our director of policy at the time.

According to the DOJ IG Report, the investigation team believed Papadopoulos had rehearsed his answer to Halper (and indeed, the Mueller Report makes clear that in the wake of Trump’s “Russia, are you listening” comment, everyone but Manafort stopped pursuing previous plans to reach out to Russia).

Case Agent 1 told the OIG that Papadopoulos’s “response to the direct questions seemed weird” to the Crossfire Hurricane team because it “seemed rehearsed and almost rote.” Case Agent 1 added that at these points in the conversation, Papadopoulos “went from a free-flowing conversation with [Source 2] to almost a canned response. You could tell in the demeanor of how [Papadopoulos] changed his tone, and to [the Crossfire Hurricane team] it seemed almost rehearsed.”

Whether or not he lied about knowing about “collusion,” which he defined to include reaching out to WikiLeaks, Papadopoulos defined doing so as treason. He’s wrong, but that is, apparently, what he said.

And less than a month ago, the government laid out evidence that Roger Stone had attempted to reach out to WikiLeaks via cut-outs, including Jerome Corsi. At the trial, the government did not disclose how Corsi and Stone had learned of the John Podesta emails in advance, but Stone invented yet a new cover story for the trial to continue to deny that he had done so, this time that Corsi had been lying about obtaining such information, just like Credico.

Absent a pardon, Stone is headed to prison because he refused to reveal what really happened in July and August 2016.

And whatever it is that Stone is hiding, what’s clear is he definitely tried to reach out to WikiLeaks, something that Papadopoulos claimed to consider treason.

Stone did so with the enthusiastic encouragement of Donald Trump.

During the impeachment “debate,” Republicans on the House Judiciary Committee just repeated over and over that the Mueller Report showed no “collusion.” But the facts show that, at least according to Papadopoulos’ definition, it did.

As I disclosed last year, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 


Yevgeniy Prigozhin’s Trolls Recoil from Sunlight

The other day, I noted that the government had turned the table on Concord Consulting, the Yevgeniy Prigozhin company that funded his troll operation, by asking for some pre-trial subpoenas. The reception of that motion by one of our new guests suggested that the trolls were not responding kindly to treatment to their own medicine.

Concord’s response did not disappoint.

The trollish Eric Dubelier complained that if he had to comply with this subpoena, he risks breaking Russian law.

Here, if the Court were to issue the government’s requested subpoena, Concord would be able to demonstrate that the request would cause Concord to violate Russian law on Russian soil— a result that is improper under controlling law. See In re Sealed Case, 825 F.2d at 498 (party challenging subpoena on basis that it would require the party to violate foreign law bears burden of making such a showing) (per curiam). Specifically, if Concord, individuals acting on its behalf, undersigned counsel, or its Russian counsel were to produce the information requested in the government’s proposed subpoena to the government pursuant only to a U.S. subpoena,2 they would likely be subject to legal jeopardy in Russia under criminal and other laws.

Treason, hacking, anti-sanction laws — Concord lists a parade of legal jeopardy with complying with this subpoena.

Dubelier even complains that complying with the parts of the subpoena asking for information on co-defendants charged with identity theft in the US might fall afoul of Russian privacy law.

The materials requested in items 6, 7, 8 and 9 also include documents that, if they exist, would constitute and/or contain personal data that, if Concord had such data, Concord would be generally forbidden by law from producing to the U.S. government or any third-party without each individual’s consent under Article 7 of Russian Federal Law 152-FZ, “On Personal Data,” paragraph 1 of Article 3 of which defines the term “personal data” broadly as “any information relating to an individual who is directly or indirectly identified or identifiable[.]”

I won’t take time to wade through his citations. Some (about the propriety of the subpoena, for example) are bullshit. Others pose interesting questions about the intersection of corporate persons and international law similar to others already raised by this prosecution.

But Concord’s response to some of its own medicine sure has produced an amusing response on the part of the trolls.

Update: Here’s the government’s reply, which lays out details of how it knows Concord has the subpoenaed materials. It also notes that Concord chose to mount a defense, and therefore should not now be able to hide behind its foreign status.

Additionally, Concord voluntarily chose to appear in this case. And, as the Court well knows, Concord has obtained substantial discovery and continues to seek additional information about how the United States detected its activities and detects and responds to related activities more generally. Foreign entities should not lightly be permitted to come to U.S. courts while shielding themselves from the same obligations that would apply to American defendants. Cf. In re Grand Jury Proceedings Bank of Nova Scotia, 740 F.2d 817, 828 (11th Cir. 1984) (explaining that where a bank “voluntarily elected” to do business abroad, it “accepted the incidental risk of occasional inconsistent governmental actions” and “cannot expect to avail itself of the benefits of doing business here without accepting the concomitant obligations”).

[snip]

Concord next contends (Doc. 273, at 13-16) that because it is a foreign corporation located abroad, it cannot be issued a subpoena to produce documents in connection with this case. In particular, Concord urges that its trial counsel “has no authority to accept” a trial subpoena (id. at 14) and that the Court, in any event, lacks personal jurisdiction over Concord and therefore cannot order it to produce records (id. at 14-16). Concord ignores the critical fact that it is properly a party in this case. The Court therefore can issue orders to Concord concerning this case. That includes a trial subpoena—an order to produce records that are relevant to and admissible in the case.

[snip]

In fact, after Concord initially disputed whether it had been properly served with a summons in this case, the Court confirmed that defense counsel was authorized “to enter a voluntary appearance in this matter and to subject [Concord] to the jurisdiction of this Court.” 5/9/18 Tr. 4-5. The Court clarified that Concord understood “that by doing so, it must also comply In fact, after Concord initially disputed whether it had been properly served with a summons in this case, the Court confirmed that defense counsel was authorized “to enter a voluntary appearance in this matter and to subject [Concord] to the jurisdiction of this Court.” 5/9/18 Tr. 4-5. The Court clarified that Concord understood “that by doing so, it must also comply with the Federal Rules of Criminal Procedure, the rules of this Court, and with the orders of this Court,” and defense counsel agreed. Id. at 5. A trial subpoena is an order of this Court issued in this case pursuant to the Federal Criminal Rules. Yet Concord (through that same counsel) now suggests that the Court has no authority to issue such an order to Concord. Indeed, this raises the question whether Concord believes that the Court has personal jurisdiction with respect to other orders issues in this case, such as the protective order governing the extensive discovery provided to the defense, or the Court’s scheduling order requiring Concord to provide the government with trial exhibits.


With Release of DOJ IG FISA Report, Democrats Should Pause on Impeachment

Democrats are going to roll out at least two articles of impeachment today.

But I think, in the wake of the release of the DOJ IG FISA Report, they should take a brief pause.

Don’t get me wrong. I think impeachment is necessary and urgent. I can see why Democrats might want to impeach even as Trump meets with Sergei Lavrov — particularly given Trump’s assault on Chris Wray for making some honest comments about the IG Report yesterday.

But I’ve gotten far enough into the IG Report to believe that it merits a pause for both sides to consider what it says. That’s because it basically says both parties were right. Democrats were right to think the investigation into Trump was fair and legitimately predicated. The Mueller Report has provided abundant evidence not only that Paul Manafort and Roger Stone (at a minimum) were willing to “collude” in the Russian hack-and-leak, but that they both took affirmative efforts to prevent Mueller from finding out whether they succeeded in doing so. Trump was a key player in that effort to obstruct the investigation. So the investigation was warranted, fairly predicated, and produced results that confirmed Trump’s people wanted to conspire with the Russian operation, whether or not they succeeded.

Republicans, however, were right that the Steele dossier was not adequately vetted by the FBI, and the FISA on Carter Page may not have been adequately substantiated (and the vetting on the follow-ups was even worse). That doesn’t mean Page shouldn’t have been investigated; he was already being investigated in April 2016, and things he did through December 2016 provided more cause for concern.

But neither of those things — the dossier’s shoddy vetting or the Page FISA — were key to the more substantive investigation into Trump. Indeed, Stone wasn’t even a subject in this early process; the first big investigative steps on him took place in August 2017, under Mueller.

I’ve got some quibbles with the report (mostly about how it treats exonerating information and Bruce Ohr and information sharing).

That said, the report should be an opportunity to step back and reflect on how the key issue — that Russia aggressively interfered in the US and a number of Americans embraced that effort — has gotten lost. That focus might make a few people, including Republicans who otherwise would not support impeachment but are appalled by the way Rudy has doubled down on his Ukrainian escapades, even meeting with KGB trained thugs, rethink the investigation into Trump.

Plus, the FISA Report provides one basis for bipartisan work in the near term.

Section 215 of the PATRIOT Act was due to get reauthorized on December 15. That got extended 3 months in the continuing resolution, but it will need reauthorized at that point. Meanwhile, over the past year, evidence that FBI misused FISA under both Jim Comey (with this IG Report) and Chris Wray (with the earlier report on problems with 702).

I’ve been arguing since at least February — and more aggressively since September, when I got the first concrete descriptions of how much this report would focus on process issues at FBI — that this IG Report would present an opportunity to call more substantive review of FISA. I got pushback among allies, because Carter Page is such an unsympathetic person to Democrats. But I think the report really demonstrates that, no matter how unsympathetic he is, no matter how warranted the investigation into him, the FISA process used against him was appalling.

So the surveillance community, which previously was able to unite Jim Jordan and the most Progressive Dems, really ought to take a step back and propose a three-part fix for FISA, one that could guide the further audit of FISA Michael Horowitz announced and one that might implement immediate legislative fixes to known FISA problems. At least beginning those conversation would provide some of the people yelling most loudly at each other a chance to talk about something they claim to agree on.

Let me be clear: I’m just arguing for a pause — maybe a week. Trump has violated every word of his oath of office and he threatens to undo our Constitution. But let’s take a few days and reflect on the way that the events of 2016 have sown division without getting us to do the things to prevent further Russian aggression. It won’t happen, but it’s what I think should happen.


The Flynn Predication

I’m really just starting a deep dive into the DOJ IG FISA Report. But as background for another post, I just want to look at the predication for the investigation into Mike Flynn.

The report describes how the entire investigation came after Australia passed on the tip regarding George Papadopoulos blabbing his mouth to Alexander Downer. As passed on, the tip did not provide details we’ve now come to grow familiar with. Not only was there no mention of Joseph Mifsud, but there was no indication at all where Papadopoulos learned this information.

The FBI opened Crossfire Hurricane in July 2016 following the receipt of ·certain information from a Friendly Foreign Government (FFG). According to the information provided by the FFG, in May 2016, a Trump campaign foreign policy advisor, George Papadopoulos, “suggested” to an FFG official that the Trump campaign had received “some kind of suggestion” from Russia that it could assist with the anonymous release of information that would be damaging to Hillary Clinton (Trump’s opponent in the presidential election) and President Barack Obama. At the time the FBI received the FFG information, the U.S. Intelligence Community (USIC), which includes the FBI, was aware of Russian efforts to interfere with the 2016 U.S. elections, including efforts to infiltrate servers and steal emails belongfng to the Democratic National Committee (DNC) and the Democratic Congressional Campaign Committee. The FFG shared this information with the State Department on July 26, 2016, after the internet site Wikileaks began releasing emails hacked from computers belonging to the DNC and Clinton’s campaign manager. The State Department advised the FBI of the information the next day.

FBI opened the investigation to find out whether anyone was wittingly or unwittingly part of the Russian election year operation (the unwitting part is important, because FBI did not assume at the time anyone was knowingly “colluding” with Russia.

Two of the subjects — Carter Page and Paul Manafort — were already under investigation. Papadopolous was a clear subject since he’s the one who blabbed his mouth.

Which means Mike Flynn is the only one who for whom the investigation happened because of his Russian ties and affiliation with the campaign, which is probably why his attorney is making batshit arguments about being trapped and demanding “Brady” information that has nothing to do with his case.

The report explains that Flynn was a subject because of his December 2015 trip to Russia and his “various ties to state-affiliated entities of Russia.”

The opening EC for the Flynn investigation stated that there was an articulable factual basis that Flynn “may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.” The EC cross-referenced the predication for Crossfire Hurricane and stated that Flynn was an advisor to the Trump campaign, had various ties to state-affiliated entities of Russia, and traveled to Russia in December 2015.

On top of some speeches to Russian companies, those ties would have involved a fairly warm relationship with the head of GRU (which had already been IDed as responsible for the hack-and-leak operation) and ongoing conversations with Sergei Kislyak.

But ultimately, Flynn became a subject because he might have been the source for Papadopoulos of advance notice of the hack-and-leak operation, and seemed to be the focus of a whole lot of Russian attention.

The early investigation would have shown that Flynn alerted DIA of those ties (though the government currently claims some of that reporting was actually inculpatory). Which is probably why the FBI didn’t think Flynn was a witting recruit of Russia.

But then, even as FBI was deciding he was not a witting recruit, FBI discovered his December conversations with Sergey Kislyak (that they didn’t focus on them in real time is a testament that they were not working very aggressively against Flynn). Flynn then got the entire Trump transition to lie about that call, something that Sally Yates has credibly explained would raise concerns that he might be vulnerable to further recruitment.

On January 24, 2017, Flynn not only lied to the FBI about his sanctions discussion with Kislyak, but lied about two other conversations with Kislyak (the first being the Israeli settlement conversation, another being at least one conversation during the campaign). At that point, the question was whether those were material lies designed to obstruct the investigation.

Still, on January 27, the FBI would have gotten an answer to the question that kicked off the entire investigation: how had Papadopoulos learned — in advance — that Russia planned to dump information harming Hillary? In his first interview with the FBI, Papadopoulos made it clear he had interacted closely with Mifsud, whom FBI already suspected was a Russian asset.

Having answered that question, the FBI then wrote up a memo that concluded Flynn was not a Russian agent — not a witting Russian recruit — on January 30. That didn’t answer the question about whether he was an unwitting recruit. Indeed, according to Robert Mueller, that question was still being pursued in May.

But from that point forward, Flynn (and Trump) did one after another thing — including Flynn’s attempts to avoid registering his Turkish lobbying — that merited ongoing investigation.

That’s probably not going to be enough to sustain Sidney Powell’s claims he was entrapped.

As I disclosed last year, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 


The Special Envoy for Ukraine Was Working on Paul Manafort’s Defense

In advance of this morning’s impeachment report, Just Security published Susan Simpson’s takedown of the GOP report on impeachment.

Simpson proves that the hold on aid was unprecedented in form and all the excuses for it bullshit. She shows that Kurt Volker and Gordon Sondland were lying about knowing that Burisma was code for Biden. And she lays out how a defense the GOP are making — that this is all about a legitimate interest in 2016 interference — is not what Trump is actually claiming — which is that Trump and Rudy Giuliani are both claiming that Ukraine, not Russia, did the 2016 attack. Here’s her summary of the last bit:

Although the minority report argues that it is “undisputed” that Ukrainians interfered in the 2016 election due to “senior Ukrainian officials ma[king] negative and critical comments about candidate Trump,” this talking point comes from House Republicans only, not from President Trump. (Minority at 78) Neither Giuliani nor President Trump have ever expressed an interest in an investigation into whether Ukraine “interfered” in the 2016 election because of what some Ukrainians officials wrote in op-eds or on social media. The idea that this is what Trump wanted to investigate is a fiction that House Republicans invented to give themselves something they were willing to defend. The only investigation into the 2016 election that President Trump has expressed interest in – both in interviews in Fox News, and in his July 25th call with Zelensky – is an investigation aimed at proving Ukraine was behind the DNC hack.

President Trump’s desire for an investigation that would exonerate Russia is undeniable – it’s right there in the transcript of that “perfect” July 25th call – and it’s also indefensible. And so the minority report makes no attempt to try; instead the report concocts an alternative account that does not match the record.

That detail is important given something Simpson includes to substantiate her argument. In part of her proof that the Ukrainians knew well what was going on, she cites an April 5th interview with Ruslan Bortnik. Bortnik claims that it was already obvious at that point that Volker was not doing what he was hired (for “free”) to do: make peace with Russia.

This includes articles such as an April 5th report of an interview with the Director of the Ukrainian Institute for Policy Analysis and Management, Ruslan Bortnik, on his perception of Ambassador Volker’s role in Ukraine:

“Volker today turned out to be an ambassador without a message, that is, a person who nominally retains the function of special envoy for Ukraine, but really cannot meet anyone and does not conduct any negotiations because of his inability to organize a productive dialogue with the Russian Federation. However, he continues to try to play some important role in Ukrainian affairs, especially with regard to the Manafort case, allegedly Ukrainian interference in the US elections, Burisma Holding and the ongoing election campaign in the USA.”

Significantly, by April, Bortnik knew that along with working on alleged Ukrainian interference in the US elections and framing Joe Biden (both things that Volker’s sworn testimony says he wasn’t asked to do until later), Volker was also working on Paul Manafort’s case.

That suggests the guy who was supposed to be making peace with Russia was instead trying to find a way to help the guy who obstructed Mueller’s investigation into whether that guy entered into a quid pro quo with Russia for election assistance dodge his legal exposure for that and helping pro-Russian leaders in Ukraine loot the country.

The most charitable possibility to explain this (and Volker’s subsequent lies) is that he viewed it to be necessary to make Russia’s tampering in 2016 disappear before Russia would negotiate peace in Ukraine. But there are a whole lot of more sordid possibilities.


DOJ Flips the Lawfare on Its Head in Russian Troll Case

In part because Judge Dabney Friedrich has only recently attempted to impose some control on the case, the prosecution against the Russian troll company Concord Management waddles slowly towards a scheduled trial date of April 6, 2020. As it has throughout this process, Concord continues to make trollish arguments to gum up the prosecution. Of particular note, it continues its efforts to use the prosecution to obtain as much information as it can, including information about intelligence the government has on Concord as well as on the victims.

Don’t get me wrong. That is their right, and one of the dangers of indicting corporate entities for this kind of crime.

But the government just gave Concord a bit of its own medicine. On Tuesday, it moved to obtain an early trial subpoena to serve on Concord. It seeks information on Concord’s communications with the Internet Research Agency, other shell companies, and a list of co-conspirators. Perhaps most concerning, for Concord’s sometime owner Yevgeniy Prigozhin, it asks for his calendar from January 2014 through February 2018, a calendar that — if it’s accurate — likely includes Vladimir Putin.

Calendar entries for Yevgeniy Prigozhin for the time period January 1, 2014 to February 1, 2018.

The motion uses precisely the legal fact that allowed Concord to respond to this indictment with no risk to any biological person against it, arguing that because it is a corporation it has no Fifth Amendment privilege.

Moreover, even though it is a defendant, Concord cannot avoid responding to a trial subpoena requesting the production of records under the Fifth Amendment because corporations have no privilege against self-incrimination. Braswell v. United States, 487 U.S. 99, 102 (1988).

Understand, the government almost certainly has versions of all the things it asks for on the list. But assuming Friedrich approves the subpoena, Concord will be required to submit its own version of these documents, which the government might be able to prove to be false (adding to Concord’s legal jeopardy and putting Concord’s American lawyers on the hook). It’s also likely the government is forcing Concord to do its own parallel construction.

It’s a subtle move, but one that may shift how this proceeds going forward.

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Originally Posted @ https://www.emptywheel.net/mueller-probe/page/63/